Mikell Jr. v. Ebbert

Filing 31

ORDER denying 30 Motion for Reconsideration of 26 Order; the undersigneds Order dated January 3, 2012, shall remain the Order of the Court. Signed by Magistrate Judge James E. Graham on 1/23/2012. (csr)

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IN THE UNITED STATES [ISTRICT COURT
FOR THE SOUTHERN DISTFICT OF GEORGIA
2012 JAN 23 PM 54
STATESBORO DIVISION

SO. WST. OF GA.
BOB AARON MIKELL, JR.,
Petitioner,
V.

CIVIL ACTION NOW: CV6II-047

DAVID J. EBBERT, Warden, and
SAMUEL S. OLENS, Attorney
General,
Respondents

ORDER
Petitioner Bob Aaron Mikell ("Mikell") filed a document titled Petitioner's
Opposition to the Government's Response and a document titled Addendum to
Petitioner's Opposition. (Doc. Nos. 29 and 30). The Court has construed these
documents as a motion for reconsideration of the undersigned's Order dated January 3,
2012. (Doc. No. 26). In that Order, the undersigned vacated his previous Order dated
October 27, 2011, and denied Mikell's Motion to Re-characterize his 28 U.S.C. § 2254
habeas corpus petition as a motion for writ of coram nobis.
In his "motion for reconsideration," Mikell argues that the undersigned erred in
denying his Motion to Re-characterize his § 2254 petition as a motion for writ of coram
nobis. As discussed in United States v. Morgan, 346 U.S. 502, 505 n.4 (1954), and in
the undersigned's Order, a motion for a writ of corarn nobis "is a step in the criminal
case and not, like habeas corpus where relief is sought in a separate case and record,

AO 72A
(Rev. g/2)

court conviction; therefore, a motion for a writ of coram nobis would properly be a step
in that criminal case. As a result, the writ of coram nobis is not an available remedy for
Mikell to challenge his state court conviction in federal court.
Mikell argues that "it makes no difference if the prior conviction was a State
charge . . . the holding in Morgan still applies." (Doc. No. 29, p. 2). In Mor g an, the
United States Supreme Court held that a writ of coram nobis is appropriate to cure
"errors of the most fundamental character." Mor g an, 346 U.S. at 512 (internal
punctuation and citation omitted). However, because a motion for a writ of coram riobis
"is a step in the criminal case," such a motion must be pursued in the court which heard
the movant's criminal case. Mor g an, 346 U.S. at 505 n.4. 1 Consequently, though a writ
of coram nobis might be available to Mikell, it is not available to him in federal court.
The Court is not persuaded to alter its decision to deny Mikell's Motion to Recharacterize. The undersigned's Order dated January 3, 2012, shall remain the Order
of the Court. Mikell's "motion for reconsideration" is DENIED.
SO ORDERED, this

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day of January, 2012.

ES E. GRAHAM
ED STATES MAGISTRATE JUDGE

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Mikeli asserts that the Court cannot rely on this footnote in Morgan because the footnote does not
provide sound precedent due to the Supreme Court's holding in Mor g an that the remedy of a writ of
coram nobis could be sought in federal court. (Doc. No. 30, pp. 1-2). in Morgan, the petitioner sought a
writ of coram nobis in federal court where the federal conviction he challenged was received. Morgan,
346 U.S. at 503. In the instant case, Mikell seeks a writ of coram nobis in federal court while the
conviction he challenges was received in state court. If the remedy of a writ of coram nobis is available to
Mikell at all, it should be sought in the court of conviction, like the petitioner in Morgan.
\O 72A
Rev. 8/82)

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